USCIS employs several background checks for EB-5 and other employment based visa programs. The most basic due diligence checks of EB-5 applicants are

• USCIS checks criminal history, fake documents and risk to national security
•  FBI  collects EB-5 applicant’s fingerprints and conducts name and date-of-birth checks. They may also check police records from the applicant’s home country. These checks find applicants who pose a national security risk.
• U.S. Customs and Border Protection may check national security databases, including social media and digital data from computers when an applicant arrives in the United States.
• US Embassy / Consulate may further investigate the EB-5 investor’s source of funds,  money laundering, fraud, misrepresentation, or other financial crimes, association with particular organizations could be grounds for inadmissibility.
• USCIS checks lawful source of funds which is not arrived from prohibited banks from OFAC sanctions list.

Due diligence and Background checks

Common USCIS Background Checks: The Basics, By Directorate

Service Center Operations Directorate

•  FBI Name Check : Automated check within 15 days of filing with USCIS and returned on average between 30–60 days, per inter-agency agreement. Valid for 15 months.
• FBI Fingerprint Check:  Automated check and sent in seconds after collection at the ASC.
• CBP TECS Check : A check using the applicant’s ten-print biometrics to check various USCIS systems, including: FMNS, CICS, FD-258 MF, and BBSS.
• IDENT Check : Automated and manual check of applicant’s biographic information.
• USCIS Background IT Systems Check: Manual check using the applicant’s ten-print biometrics to check various USCIS systems, including: FMNS, CICS, FD-258 MF, and BBSS.

Field Operations Directorate

The standard operating procedure at the Field Operations Directorate is to conduct the following checks:

• FBI Name Check : Automated check within 15 days of filing at the National Benefits Center (NBC) and returned on average between 30–90 days, per inter-agency agreement.
• FBI Fingerprint Check: Automated check and sent in seconds after collection at the ASC, usually processed within 60 days of receipt of filing.
• CBP TECS Check: Automated and manual check of CBP data repository. Completed within 15 days of filing with the NBC and valid for 180 days.
• IDENT Check: Automated and manual check of applicant’s biographic information.
• USCIS Background IT Systems Check: Manual check using the applicant’s ten-print biometrics to check various USCIS systems, including: FMNS, CICS, FD-258 MF, and BBSS.

OFAC Sanctions

The Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions against targeted foreign countries and regimes, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.

Presidential powers allow OFAC to freeze assets under U.S. jurisdiction and impose controls on transactions.

OFAC: Countries facing United States Sanctions

For adjudication purposes, please be mindful of cases adjudicated from countries such as:

• Iran,
• Venezuela,
• North Korea

USCIS recommends if you are assigned a case from these countries please see a supervisor before a djudication. These cases may require additional documentation to show the EB-5capital investment was transferred to the United States legally.

Cases filed after October 22,2012 do not require an OFAC license,whereas, cases filed prior to this date must include an OFAC license authorizing the transaction/investment.

Cases filed after October 22, 2012 allow investment funds to have passed through prohibited banks. Funds coming directly from a prohibited bank are still prohibited.

USCIS recommends to be mindful of the classification of”WMD”ontheprohibitedbanklist. These cases may require review by OCC and FDNS before proceeding.

Investment of funds that have passed through prohibited banks would also be in violation of the ITR.  The investment money is shown to be obtained through a lawful source and transferred to the United States without having traveled through a prohibited bank

The lawful source of an EB-5 investor’s capital investment must be established at the time of filing of the Form I-526 petition.

For current lists of prohibited banks,please check the OFAC website.

Money laundering

I-526 Petition must prove lawful source of funds for an investor.

To safeguard the banking system, the Financial Crimes Enforcement Network (FinCEN), federal banking regulators, and the federal law enforcement community work closely with the banking industry to fight money laundering.

EB-5 Fraud

The DHS Annual report 2018 said – The EB-5 program has faced a number of challenges since inception. Among the issues are fraud committed by principal investors; fraud and malfeasance committed by attorneys; gerrymandering of TEAs for the benefit of investors; and sourcing of funds in ways that have the potential to threaten national security. Congress, federal agencies, and the public have all expressed concern that Americans have not seen the benefit of the program as designed (jobs, investment, etc.) while fraud and questionable practices result in foreign nationals losing their money and immigration benefits they sought.

Source of Funds

Another challenge for the EB-5 program has been the development of money laundering schemes and proving the lawful source of funds. The EB-5 regulations require immigrant investors to identify the source of EB-5 funds to establish they were obtained lawfully.426 This investor burden is met through business records, such as foreign business registration records; business and personal tax return filings in any country within the past five years; and/or evidence identifying other sources of capital such as business entity reports, audited financial statements, income earning statements, gift instruments, and property ownership.427

However, even with the presentation of these documents, USCIS finds that in many countries, investors are permitted to self-identify and self-report the sources of their assets and income, making it difficult for USCIS to verify the lawfulness of the source of funds that are then invested in the EB-5 program. Critics of the program have raised concerns regarding the origin of investors’ funds. They have raised the potential for abuse of the program by corrupt foreign officials and criminals attempting to evade laws and protect illicitly gained funds. Others argue that the agency is hyper-technical in its requirements, making it nearly impossible to meet the burden identifying fund sources. Both sides would agree that the standard requires review by the agency.

Securities and Exchange Commission

The SEC has also worked cooperatively with the Financial Industry Regulatory Authority (FINRA) to appropriately share information and expertise regarding the role of brokers and dealers in the EB-5 industry.

Because the SEC Commission does not administer the EB-5 Program, it generally does not receive or review materials related to applications under this program.  Additionally, as EB-5 investments are sold to non-U.S. persons, there is limited regulatory transparency with these offshore offers and sales of securities.  In carrying out the Commission’s mandate to investigate and prosecute violations of the federal securities laws, however, the SEC’s Division of Enforcement scrutinizes allegations regarding specific investments arising out of the EB-5 program.  EB-5-related inquiries have been a small but growing percentage of the approximately 15,000 tips, complaints, and referrals that the SEC receives each year.

Bitcoin

No official policy or guidelines have been issued for Bitcoin investments for EB-5. The key here is to prove lawful source of funds.

Information sharing

The Five Country Conference (FCC) High Value Data Sharing (HVDS) Protocol initiative was signed in 2009 to enable the exchange of biometric data between member countries – the United Kingdom, the United States, Canada, Australia, and New Zealand. In 2011 the UK and Ireland agreed to share biometric data from visa applications to fight illegal immigration.

US shares visa and immigration information with several countries, with United Kingdom and Canada

US also participates intelligence alliance known as Five eyes comprising Australia, Canada, New Zealand, the United Kingdom and the United States.